On 14 April 2012, Mr Jarrod Hampton, an employee of the Accused, died while drift diving from the Paspaley II, a pearling vessel operated by the Accused.
The Accused corporation runs a pearling business. As part of this business, the Accused employs people to collect pearl shells from the ocean floor through a specialised form of diving known as 'drift diving'.
During the 2012 season, the Accused operated four drift diving vessels, one of which was the Paspaley II.
Drift diving is a process whereby a series of divers manually collect pearl shells from the sea floor. The divers are towed by a slow moving pearling vessel, allowing the diver to drift along the sea floor at a speed just above the tidal current.
On each side of the vessel is a boom to which four vertical down lines are attached at regular intervals. The down lines have lead weights on the end. From each of these weights is a horizontal work line, which runs parallel to the seafloor, that the diver holds onto. In addition to the work line each diver is attached to the vessel by their individual air line which provides them with surface supplied air from the vessel's air compressor.
The air line is approximately 150 metres long and the length of the work line ranges from 50 to 65 metres. The diver's air line is attached to the weight belt by a Carabiner clip lashed to the air line. The air line is connected to the vessel. The diver's weight belt has a quick release mechanism which means that the diver can disconnect from the air line, and therefore the vessel, in an emergency.
The diver holds on to the work line, but is not otherwise connected to it. The diver can move up and down the length of the work line as required to search for pearl shells.
The Paspaley II has eight work lines and air lines allowing a maximum of 8 divers to dive at any one time.
In addition to the eight divers, the Paspaley II was staffed by the skipper and a crew of four, comprising a deckhand/spare diver, a domestic hand, a cook and an engineer. The diving operations on each vessel are directed by the skipper and the head diver.
During the dive, the crew onboard the vessel use a winch to adjust the weight at the end of each vertical down line to allow the divers to maintain a depth of approximately one metre above the sea floor. The drift diving system of work is designed to require the divers to return to the surface in stages and at set periods in accordance with drift dive profiles designed to avoid the adverse effects of decompression illness.
The shells are picked up and stored in a bag, held around the neck of the diver. When the bag becomes full, the diver returns to the start of the work line and empties the neck bag into a larger bag.
There are a variety of reasons why a diver may have to surface during a dive.
Mr Hampton, who was 22 years old at the time of his death, was an experienced, competent and suitably qualified scuba diver. He did not have any previous experience of drift diving. Mr Hampton died during his second day of drift diving for the Accused after completing 16 drift dives.
Before commencing any diving with the Accused, Mr Hampton completed a diving medical conducted by a qualified medical practitioner and a pearl diving induction course conducted by the Pearl Producers Association ("PPA") in Darwin. The course comprises both theory and practical exercises. Mr Hampton attended the induction course from 23-25 February 2012. Documents from the PPA confirm that Mr Hampton successfully completed the course.
In March 2012, the Accused's fleet departed from Darwin and steamed to Broome. Mr Hampton travelled with the fleet. Due to a cyclone, plans to commence drift diving on 28 March 2012 were delayed and instead Mr Hampton participated in diving activities for seven days at one of the pearl farms operated by the Accused.
On 12 April 2012, the Paspaley II accompanied by 3 other Paspaley vessels departed Broome and steamed to Eighty Mile Beach. The crew commenced drift diving on 13 April 2012.
On 13 April 2012, the crew commenced drift diving from the Paspaley II. On the first day the divers carried out nine dives without any incident.
On 14 April 2012 there was an incident during one of the earlier dives, when Mr Hampton let go of his work line upon or shortly after encountering a "mud monster", which is an area of low visibility where the sea floor is disturbed. Mr Hampton discussed the incident with the Head Diver, Mr Sam Morton, immediately after the dive was completed. Mr Hampton told Mr Morton that he made his way back to the surface using his air line and one of the other diver's work lines.
The eighth dive commenced at approximately 3.25pm. The planned dive profile was 13-15 metres, with a planned dive duration of approximately 45 minutes, and a planned 10 minute decompression stop. The visibility during the dive was 3-4 metres.
The incident occurred at approximately 4pm. Around 35 minutes into the dive Mr Hampton came to the surface some distance behind the Paspaley II. It is not known why Mr Hampton came to the surface.
The attention of the deckhand/spare diver, Mr Alex Evans, and another employee, Ms Julia Wiebe, was drawn to the presence of Mr Hampton on the surface shortly after Mr Evans thought he heard a shout. Believing Mr Hampton might be in trouble, Mr Evans called the skipper, Mr Ron Watson, to the back deck. Mr Watson saw Mr Hampton on the surface, before Mr Hampton went back below the surface. Mr Watson thought that Mr Hampton was continuing with the dive. Mr Watson slowed the vessel using the parachute drogue (which is a parachute style water braking mechanism). As he did this, he spoke with Mr Evans. Mr Evans told Mr Watson what had occurred. Mr Watson called off the dive.
The other divers were "banged up" - that is, they were given a signal to end their dive and return to the surface. The signal is given by a crew member onboard the vessel by striking the vessel's bollard or ladder with a hammer. Mr Watson went to the wheelhouse to mark the vessel's location on a plotter in case Mr Hampton was adrift. He then returned to the back deck and searched for Mr Hampton using binoculars.
Under the direction of the skipper, Mr Evans then manually pulled Mr Hampton's air line in towards the vessel. To do this, Mr Evans stood out on the boom of the vessel. When he commenced pulling, the line was heavy and at or near full length.
When Mr Hampton was in the water, he appeared unconscious.
When Mr Hampton was nearer to the vessel, upon sighting him Mr Watson and the engineer, Mr Jamie Hulme, dived into the water and swam towards him to provide assistance. Mr Watson did not have fins on and found it difficult to swim back to the vessel. Once he had surfaced, Mr Morton also swam over to assist.
With the assistance of the crew and other divers, who had by now resurfaced following their decompression stop, Mr Hampton was raised onto the deck of the vessel via a ladder.
It is not known how long it took for Mr Hampton to be brought to the back deck of the vessel. The witnesses' accounts of time vary between 5 minutes and 10 minutes or more.
When Mr Hampton was on the deck of the Paspaley II he appeared "grey" and "lifeless".
The crew made all reasonable efforts to revive Mr Hampton. The crew attempted CPR and to administer oxygen. Dr Wong, the Accused's consultant diving doctor, was contacted during the resuscitation attempt and provided advice. Mr Hampton was unable to be revived.
On 13 and 14 April 2012, the Accused did not have a written emergency procedure for the rescue and retrieval of an incapacitated drift diver from the water to the vessel. The Paspaley II crew were not aware of any written Paspaley procedure for the rescue of incapacitated drift divers from the water to the vessel and they had not practiced any emergency drills for rescuing and retrieving an incapacitated drift diver.
Shortly following the incident, in April 2012 the Accused introduced a process for identifying an incapacitated drift diver. This was done prior to any notice or instruction being issued by WorkSafe WA. This process has since been revised and now forms part of the Accused's Standard Operating Procedures.
The current written emergency procedure provides specific instructions identifying the role of crew members for the recovery of an incapacitated drift diver, both on the surface and underwater. The procedure also sets out the roles of the vessel's crew, the rescue swimmer and the skipper in the form of a dive emergency plan. The procedure provides for emergency rescue of incapacitated diver drills to be practised by the crew. These drills have been completed by Paspaley crews since April 2012.
The procedure for retrieving an incapacitated drift diver now also involves pulling in an airline as fast as reasonably practicable by a winch (which was available on the Paspaley II in April 2012) or other best available means. The winch, with the assistance of a lazy line, can be used in place of manually pulling the air line.
The Accused now has two persons working on the back deck of its drift diving vessels. At least one of those persons is always tasked with keeping watch for divers up until they commence their oxygen or air hang offs. At least one of the two persons is to be capable of being a rescue swimmer. A rescue equipment kit (including mask and fins) is situated on the back deck to enable the rescue swimmer to swim to the incapacitated diver quickly.
The PPA produces a Pearl Diving Industry Code of Practice. The Code of Practice is an industry guide for best practice. The Code of Practice is referred to by the Accused as the minimum standard for diving operations and compliance with its terms is required of its employees as a condition of their employment.
The Code of Practice, current as at January 2012, provided at paragraph 3.3.5, in relation to emergency procedures, that:
"(a) All personnel are to be trained and practised in signalling systems, emergency and rescue procedures in a working environment. Diving emergency drills are to be practised a minimum of twice yearly."
Paragraph 7.4 of the Code of Practice provides:
"(a) A company should ensure dive emergency procedures cover the search, recovery and retrieval of injured divers."
These aspects of the Code of Practice were not new, paragraph 3.3.5 having been inserted into the Code in 2010 and paragraph 7.4 having been in place since 2002.